The
period of time in which an inmate was treated for a mental disorder that is in
remission cannot be combined with that in which he was treated for a separate
illness, which continues to affect him, in determining whether he qualifies as
a mentally disordered offender, the Fourth District Court of Appeal ruled
yesterday.

Div.
Two affirmed a San Bernardino Superior Court judge’s ruling that Billy Sheek
cannot be committed under the Mentally Disordered Offender Act, contrary to the
determination of the Board of Prison Terms.

Under
the act, if an offender about to be released on parole is determined by the
board to suffer from a “severe mental disorder” and meets certain other
criteria, her or she will be committed to a mental health facility for the
first year of parole.

The
inmate may, however, challenge the board’s determination in superior court and
is entitled to a jury trial.

Sheek
requested a trial, and through his appointed counsel challenged the board’s
finding that he met the criterion that “[t]he prisoner has been in treatment
for the severe mental disorder for 90 days or more within the year prior to the
prisoner’s parole or release.”

Judge
Douglas M. Elwell granted Sheek a dismissal prior to the trial, ruling that the
district attorney could not prove Sheek met the 90-day criterion. He cited the
proffered testimony of the district attorney’s psychiatric expert.

Dr.
Mendel Feldsher explained that Sheek suffered from two separate mental
illnesses, depressive disorder and pedophilia. His depression, for which he was
treated with the drug Zoloft, was in remission by the date of the Board of
Prison Terms hearing, Feldsher opined, but the pedophilia—which had been
diagnosed less than four months before the hearing—was not.

Zoloft,
Feldsher added, has benefits in treating pedophiles. On cross-examination,
however, the doctor acknowledged that Sheek had never been specifically treated
for pedophilia prior to his board hearing and that his case manager had
certified—more than a month after the diagnosis was made—that no treatment was
necessary.

Justice
Thomas Hollenhorst, writing for the Court of Appeal, said the trial judge was
correct. The statute, he said, does not allow prosecutors to “to bootstrap the
treatment defendant received for his depressive disorder, which was indisputably
in remission...onto defendant’s [belatedly diagnosed] pedophilia.”

The
justice also rejected the district attorney’s contention that the statute does
not allow the judge to dispose of a case prior to trial.

While
there is no specific provision authorizing pretrial dismissals of MDO cases,
Hollenhorst explained, they are within the inherent discretion of the court.
The exercise of such discretion in appropriate, the justice said, “when, as
here, the evidence raises purely legal issues.”

Even
if erroneous, Hollenhorst added, the dismissal was harmless because the
district attorney could not have proven the 90-day criterion at trial.